SID SALTER: Outside counsel fight remains a political cold war

STARKVILLE – The ongoing legislative battle over the so-called “outside counsel” or contingency fee law remains a political cold war between the state’s trial lawyers and the state’s business and medical interests – and it’s a story that has two sides.
Tort reform opponents have consistently used the outside counsel issue as license to rail against the highly questionable activities of the U.S. Chamber of Commerce in state judicial politics more than a decade ago.
To be clear, the U.S. Chamber wasn’t slinging wads of campaign cash around in Mississippi politics in 2000 until after a group called the Institute for Consumers and the Environment Political Action Committee – ICEPAC -was formed in the mid-1990s and began doing the same thing. ICEPAC was heavily funded by wealthy state trial lawyers like Dickie Scruggs and Paul Minor – both now disgraced and serving federal prison sentences.
The ICEPAC group promoted themselves as a political counterbalance to business, insurance and medical interests. But the new wealth that many of ICEPAC’s patrons were using to fund the PAC came directly from legal fees gained from outside counsel contracts.
In that era, it was a poorly kept secret at the state Capitol that Scruggs had – as later confirmed in the 2010 Curtis Wilkie book “The Fall of the House of Zeus” – quietly funded a push to amend a Medicaid bill to authorize the state to “employ legal counsel on a contingency basis” that created a system of having the state’s attorney general hire outside lawyers. Then there’s the fact that so many of the outside counsel attorneys chosen to represent the state since the 1994 law change also just happened to be among the largest campaign contributors both to the attorneys general passing out the contracts and to ICEPAC and directly to the campaigns who fit Scruggs’ “magic jurisdiction” vision for the judiciary.
Scruggs said in 2002 while serving on a panel at a national conference: “What I call the ‘magic jurisdiction’ . . . [is] where the judiciary is elected with verdict money. The trial lawyers have established relationships with the judges that are elected; they’re State Court judges; they’re populists. They’ve got large populations of voters who are in on the deal; they’re getting their [piece] in many cases. And so, it’s a political force in their jurisdiction, and it’s almost impossible to get a fair trial if you’re a defendant in some of these places. The plaintiff lawyer walks in there and writes the number on the blackboard, and the first juror meets the last one coming out the door with that amount of money. . . . These cases are not won in the courtroom. They’re won on the back roads long before the case goes to trial. Any lawyer fresh out of law school can walk in there and win the case, so it doesn’t matter what the evidence or law is.”
Such unbridled arrogance and avarice sent an engraved invitation to groups like the U.S. Chamber to meet political fire with fire.
But in truth, the historical tit-for-tat between the U.S. Chamber and ICEPAC is merely a smokescreen for the real issues at play here, which is whether any Mississippi attorney general – Republican or Democrat – should be able to negotiate these contracts without oversight and whether any AG can encumber or expend public lawsuit settlement funds for purposes not expressly approved by the Legislature.
Sid Salter is a syndicated columnist. Contact him at (601) 507-8004 or sidsalter@sidsalter.com